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Ohio Revised Code

Ohio Rev. Code § 2929.022 (2026)

Sentencing hearing - determining existence of aggravating circumstance

✓ current as of May 2026
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Effective:
April 12, 2021
Latest Legislation:
House Bill 136 - 133rd General Assembly
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(A) If an indictment or count in an indictment charging a defendant with aggravated murder contains a specification of the aggravating circumstance of a prior conviction listed in division (A)(5) of section 2929.04 of the Revised Code, the defendant may elect to have the panel of three judges, if the defendant waives trial by jury, or the trial judge, if the defendant is tried by jury, determine the existence of that aggravating circumstance at the sentencing hearing held pursuant to divisions (C) and (D) of section 2929.03 of the Revised Code.

(1) If the defendant does not elect to have the existence of the aggravating circumstance determined at the sentencing hearing, the defendant shall be tried on the charge of aggravated murder, on the specification of the aggravating circumstance of a prior conviction listed in division (A)(5) of section 2929.04 of the Revised Code, and on any other specifications of an aggravating circumstance listed in division (A) of section 2929.04 of the Revised Code in a single trial as in any other criminal case in which a person is charged with aggravated murder and specifications.

(2) If the defendant does elect to have the existence of the aggravating circumstance of a prior conviction listed in division (A)(5) of section 2929.04 of the Revised Code determined at the sentencing hearing, then, following a verdict of guilty of the charge of aggravated murder, the panel of three judges or the trial judge shall:

(a) Hold a sentencing hearing pursuant to division (B) of this section, unless required to do otherwise under division (A)(2)(b) of this section;

(b) If the offender raises the matter of age at trial pursuant to section 2929.023 of the Revised Code and is not found at trial to have been eighteen years of age or older at the time of the commission of the offense or raises the matter of the offender's serious mental illness at the time of the alleged commission of the offense pursuant to section 2929.025 of the Revised Code and is found under that section to be ineligible for a sentence of death due to serious mental illness, conduct a hearing to determine if the specification of the aggravating circumstance of a prior conviction listed in division (A)(5) of section 2929.04 of the Revised Code is proven beyond a reasonable doubt. After conducting the hearing, the panel or judge shall proceed as follows:

(i) If that aggravating circumstance is proven beyond a reasonable doubt or if the defendant at trial was convicted of any other specification of an aggravating circumstance, the panel or judge shall impose sentence according to division (E) of section 2929.03 of the Revised Code.

(ii) If that aggravating circumstance is not proven beyond a reasonable doubt and the defendant at trial was not convicted of any other specification of an aggravating circumstance, except as otherwise provided in this division, the panel or judge shall impose sentence of life imprisonment with parole eligibility after serving twenty years of imprisonment on the offender. If that aggravating circumstance is not proven beyond a reasonable doubt, the defendant at trial was not convicted of any other specification of an aggravating circumstance, the victim of the aggravated murder was less than thirteen years of age, and the offender also is convicted of or pleads guilty to a sexual motivation specification that was included in the indictment, count in the indictment, or information charging the offense, the panel or judge shall sentence the offender pursuant to division (B)(3) of section 2971.03 of the Revised Code to an indefinite term consisting of a minimum term of thirty years and a maximum term of life imprisonment.

(B) At the sentencing hearing, the panel of judges, if the defendant was tried by a panel of three judges, or the trial judge, if the defendant was tried by jury, shall, when required pursuant to division (A)(2) of this section, first determine if the specification of the aggravating circumstance of a prior conviction listed in division (A)(5) of section 2929.04 of the Revised Code is proven beyond a reasonable doubt. If the panel of judges or the trial judge determines that the specification of the aggravating circumstance of a prior conviction listed in division (A)(5) of section 2929.04 of the Revised Code is proven beyond a reasonable doubt or if they do not determine that the specification is proven beyond a reasonable doubt but the defendant at trial was convicted of a specification of any other aggravating circumstance listed in division (A) of section 2929.04 of the Revised Code, the panel of judges or the trial judge and trial jury shall impose sentence on the offender pursuant to division (D) of section 2929.03 and section 2929.04 of the Revised Code. If the panel of judges or the trial judge does not determine that the specification of the aggravating circumstance of a prior conviction listed in division (A)(5) of section 2929.04 of the Revised Code is proven beyond a reasonable doubt and the defendant at trial was not convicted of any other specification of an aggravating circumstance listed in division (A) of section 2929.04 of the Revised Code, the panel of judges or the trial judge shall terminate the sentencing hearing and impose sentence on the offender as follows:

(1) Subject to division (B)(2) of this section, the panel or judge shall impose a sentence of life imprisonment with parole eligibility after serving twenty years of imprisonment on the offender.

(2) If the victim of the aggravated murder was less than thirteen years of age and the offender also is convicted of or pleads guilty to a sexual motivation specification that was included in the indictment, count in the indictment, or information charging the offense, the panel or judge shall sentence the offender pursuant to division (B)(3) of section 2971.03 of the Revised Code to an indefinite term consisting of a minimum term of thirty years and a maximum term of life imprisonment.
Notes of Decisions
Cited in 37 cases (3 in the last 5 years), 1986–2024 · leading case: State v. Davis, 528 N.E.2d 925 (Ohio 1988).
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State v. Davis, 528 N.E.2d 925 (Ohio 1988). · cites it 9× “Nevertheless, when an R.C. 2929.022 (A) election is made, evidence concerning a prior purposeful killing, not otherwise admissible, may not be introduced at the guilt phase to prove an aggravating circumstance.”
State v. Skatzes, 104 Ohio St. 3d 195 (Ohio 2004). · cites it 3× “{¶ 90} Under R.C. 2929.022(A), Skatzes elected to have the trial judge determine his prior-conviction specification under R.”
Von Clark Davis v. Ralph Coyle, Warden, 475 F.3d 761 (6th Cir. 2007). · cites it 4× “Following the presentation of this evidence and arguments by counsel, the three-judge panel, constituted pursuant to the provisions of Ohio Rev. Code § 2929.022(A), sentenced Davis to death by electrocution, having unanimously found that any mitigating factors were outweighed,…”
State v. Davis, 666 N.E.2d 1099 (Ohio 1996). · cites it 5× “R.C. § 2929.022, § 2929.03, and § 2929.04 violate the accused’s rights to effective assistance of counsel and to a trial before an impartial jury, as guaranteed by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Sections 9, 10, and 16, Article…”
State v. Phillips, 2012 Ohio 5950 (Ohio Ct. App. 2012). · cites it 10× “022 is replete with references that it applies only where the State has alleged the aggravating circumstance specification of a previous conviction. See R.”
State v. Campbell, 2000 Ohio 183 (Ohio 2000). · cites it 2× “Under R.C. 2929.022(A), “the defendant may elect to have * * * the trial judge, if he is tried by jury, determine the existence of [the] aggravating circumstance [of (A)(5)] at the sentencing hearing.”
State v. Cowans, 717 N.E.2d 298 (Ohio 1999). · cites it 2× “Next, Cowans refused to take part in the R.C. 2929.022 evidentiary hearing on the prior-conviction specification.”
State v. Buell, 489 N.E.2d 795 (Ohio 1986). · cites it 2× “ate its reasons for recommending life, or the mitigating factors found; (6) Ohio’s statutory scheme fails to assure adequate appellate analysis of excessiveness and disproportionality of death sentences; (7) The death statutes deny due process and are cruel and unusual since…”
State v. Davis, 1996 Ohio 414 (Ohio 1996). · cites it 5× “R.C. §2929.022, §2929.03, and §2929.04 violate the accused’s rights to effective assistance of counsel and to a trial before an impartial jury, as guaranteed by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Sections 9, 10, and 16, Article [I]…”
State v. Scott, 497 N.E.2d 55 (Ohio 1986). · cites it 2× “04 violate his rights to effective assistance of counsel and to a trial before an impartial jury, as guaranteed by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as the companion provisions contained in the Ohio Constitution.”
State v. Cowans, 1999 Ohio 250 (Ohio 1999). · cites it 3× “(The prior- conviction specification was tried to the court pursuant to R.C. 2929.022.) After the verdict of guilty was announced, Cowans continued to profess his innocence and refused to attend or participate in the sentencing phase.”
State v. Mack, 653 N.E.2d 329 (Ohio 1995). · cites it 2× “Sections 2929.022, 2929.03 and 2929.04 are unconstitutionally vague.”
Show all 37 citing cases →
— Ohio Rev. Code § 2929.022(A) — 14 cases
State v. Skatzes, 104 Ohio St. 3d 195 (Ohio 2004). “{¶ 90} Under R.C. 2929.022(A), Skatzes elected to have the trial judge determine his prior-conviction specification under R.”
Von Clark Davis v. Ralph Coyle, Warden, 475 F.3d 761 (6th Cir. 2007). “Following the presentation of this evidence and arguments by counsel, the three-judge panel, constituted pursuant to the provisions of Ohio Rev. Code § 2929.022(A), sentenced Davis to death by electrocution, having unanimously found that any mitigating factors were outweighed,…”
State v. Davis, 528 N.E.2d 925 (Ohio 1988). “Nevertheless, when an R.C. 2929.022 (A) election is made, evidence concerning a prior purposeful killing, not otherwise admissible, may not be introduced at the guilt phase to prove an aggravating circumstance.”
State v. Campbell, 2000 Ohio 183 (Ohio 2000). “Under R.C. 2929.022(A), “the defendant may elect to have * * * the trial judge, if he is tried by jury, determine the existence of [the] aggravating circumstance [of (A)(5)] at the sentencing hearing.”
State v. Cowans, 717 N.E.2d 298 (Ohio 1999). “Next, Cowans refused to take part in the R.C. 2929.022 evidentiary hearing on the prior-conviction specification.”
— Ohio Rev. Code § 2929.022(A)(2)(ii) — 1 case
State v. Jones, 2020 Ohio 5443 (Ohio Ct. App. 2020).
— Ohio Rev. Code § 2929.022(B) — 3 cases
State v. Davis, 528 N.E.2d 925 (Ohio 1988). “Nevertheless, when an R.C. 2929.022 (A) election is made, evidence concerning a prior purposeful killing, not otherwise admissible, may not be introduced at the guilt phase to prove an aggravating circumstance.”
State v. Hollingsworth, 758 N.E.2d 713 (Ohio Ct. App. 2001).
State v. Phillips, 2012 Ohio 5950 (Ohio Ct. App. 2012). “022 is replete with references that it applies only where the State has alleged the aggravating circumstance specification of a previous conviction. See R.”
— Ohio Rev. Code § 2929.022(B)(1) — 1 case
State v. Phillips, 2012 Ohio 5950 (Ohio Ct. App. 2012). “022 is replete with references that it applies only where the State has alleged the aggravating circumstance specification of a previous conviction. See R.”
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